Interesting word, ‘constitution’: Ask an American what they think of the constitution and it’s likely that they will start mumbling something about ‘muh freedoms’ while gazing off into the middle distance as The Star Spangled Banner starts playing from nowhere. Now try it with someone from the UK and marvel at how quickly their eyes glaze over. Why is this? Why does its mere mention send Americans into spasms of starry-eyed partriotism while most of us would have a hard time even defining what the damn thing is? Let’s start with the real basics…
Fun and Games…
Have you ever witnessed small children trying to play a boardgame they’re not really ready for, like three year olds trying to navigate their way around a Monopoly board? At first it’s all rather endearing as they bicker over whether the racing car’s better than the dog (idiots – the battleship trounces all) but it gets old pretty quickly. First there’ll be the plucking of arbitrary rules out of the air, swiftly followed by the equally arbitrary breaking of said rules before the inevitable tears before bedtime as houses are forcibly lodged into ear canals and hotels disappear up nostrils. In short, it’s not much fun and it’s also what a country looks like when it doesn’t have a constitution – just with more guerrilla warfare, roving banditry and ethnic cleansing.
From this point of view, a constitution is a pretty big deal as it is essentially a rule book that lays out how a country is to be governed. They let us know (among other things) who is in charge, how they get to be in charge, what they can do, what they can’t do and how they can be removed – simple, right? Well, sort of… While nearly everyone agrees that rules are generally a good thing for societies to run on, as to how you make, change and record those rules isn’t quite so straightforward and every country has their own take on it.
To write or not to write?
Let’s say you want to set up some rules for your country – it doesn’t take a genius to figure out that it’s probably quite a good idea to write them down, hopefully all in the same place so you know where they all are. This is the route that Americans went down after they overthrew their British rulers and what they ended up with was a written constitution – a single document where all the rules of the game were recorded. In Britain however, we have a different beast called an unwritten constitution and this is where things start getting complicated. Really complicated.
Let’s stick with Monopoly for a second and pretend that two games are about to start – one in America and one in Britain. For the Americans, setting up is a breeze: They open the box, retrieve the rulebook and then set about divying up the money in the manner intended before rolling to see who goes first. Sure, there are minor quibbles about who gets to be banker and a few harsh words exchanged over ownership of the racing car, but by and large it is easy. Not sure what you’re supposed to be doing? Fine, just go and look it up in the concise little rulebook. Simple.
In contrast, the Brits are having an absolutely torrid time getting the game off the ground, mainly because instead of finding a tidy little rulebook inside the box they discover thousands of tiny scraps of paper scattered all over the place, each one scrawled with a number of rules that were made up by players of previous games by putting them to a vote. These represent what are known as ‘statutes‘ (essentially laws made by Parliament) and there are literally thousand of the buggers, all spilling out in no particular order. Worse still, some of them have been scribbled out as players have voted to scrap various laws over the years so a good few hours is spent just trying to sort out exactly what rules still apply and which ones don’t. Oh, and on top of that, some international treaties also have the same impact on the constitution and European law complicates matters even further.
However, that’s only the start of the trouble as it turns out that there’s another box marked ‘Common Law‘ and it is equally full to the brim with similar scraps of paper that also have a bearing on the way the game is played. The thing that makes them different from statutes (which are made by Parliament) is that these rules are the result of disputes that a judge has presided over. So, let’s say that in a previous game, an argument broke out over who gets custody of the old boot and it was so intractable that the players had to call in the next door neighbour to make an impartial decision as to who gets the most rubbish piece. Once that decision is made, it becomes the template for how that dispute would be settled if it ever occurred again and it is also another component that makes up the British constitution.
So, another hour goes down the pan but the group seem to getting on top of the legal situation – that is until the host says ‘I assume we’re putting all our fines in the middle and whoever lands on Free Parking gets to keep them all, right?”. At this point, another player pipes up and demands to know why we would do that when there’s been absolutely no mention of the Free Parking rule in either statute or common law. “Because that’s just how we do it here” replies the host and the rest of the room nod along in agreement. This is what’s known as a ‘convention‘ and it’s probably the most vexing aspect in what already is a fairly bonkers constitutional set up.
Basically, a convention is a ‘rule’ that isn’t written down anywhere but is generally accepted to be valid and binding. For example, after a general election the Queen is supposed to hand the keys to No. 10 to the person most likely to ‘command the confidence of the House of Commons’ and this is usually considered to be the leader of the party with a majority of MP’s (so more MP’s than all the other parties all together). However, in the case of a ‘hung-Parliament’ (i.e. a situation where no party has a majority), this tantalisingly vague convention becomes a little problematic and is usually resolved by taking advice from a number of leading civil servants and constitutional experts as to who is best placed to become PM.
So far, she’s always done this so it’s never really been an issue but it does raise the question of what would happen if she didn’t – after all, she’s not breaking an explicit law and there’s no prescribed punishment for breaching a convention. In fact, no one really knows what should happen after a breach of convention, yet conventions are a central plank of our constitution.
Anyway, the uppity player is silenced by the nodding of his peers (that how we get things done in the UK – silently nod all opposition into the ground) and the first roll of the dice is about to happen when another player comes in clutching a copy of a book called The Experts Guide to Monopoly.
“Hold up.” she says. “This book mentions that some people play a rule when you get £400 for landing on Go. Can we do this?”
What she’s done here is invoke a ‘work of authority‘ and this is the final source of the constitution. Simply put, there are a number of very old and very wordy books – such as Walter Bagehot’s The English Constitution – that are considered to be guides on how the constitution works and they can be drawn in order to interpret the constitution. For example, if there’s a situation where the constitutional process appears to be rather ambiguous and no clear answer can be found in law or convention, one of these works can be referred to in order to help clarify the situation. Quite how a book becomes a work of authority is – like many things pertaining to British politics – as clear as mud.
Back to the game and as it happens, the group appear to be the sort of joy killing squares who always scupper my attempts to instigate the £400 rule every Christmas so the matter is dropped and the Brits finally get round to the first roll of the dice… 5 hours after the Americans have finished up and gone to bed. Despite this though, they have provided a pretty good breakdown of what our constitution is based on. To recap, while the American has one, central, unifying text that you can actually touch and exists in the physical world, the UK Constitution is drawn from the following sources, some of which only exist on a strange, metaphysical level. These are:
- Statutes (the laws that Parliament has already made, treaties and to a very complicated extent, European law)
- Common Law and precedents (essentially ‘how things have been done in the past’)
- Conventions (agreements which aren’t written down but are supposedly binding)
- Works of authority (worthy tomes written about our political system although these are only considered to have ‘persuasive authority)’
It’s also worth mentioning that there are many other constitutional arrangements around the world that have all sorts of craziness going on, but these two will do for now.
Madness! Madness I tell you!
If you’ve taken anything from all the above, I’d wager that it’s along the line ‘What the hell are we playing at?!’ and I can see why because it seems an extremely cackhanded way to govern a country. However, there is method behind the madness and in the next two posts we’ll look at how all of this stuff works in practice and why things might not be quite as harebrained as they initially seem.